Opinion
Court of Appeals No. A-9213.
August 23, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Niesje J. Steinkruger, Judge. Trial Court Nos. 4FA-97-0153 CI, 4FA-91-3388 CR.
Lance Douglas Linton Sr., pro se, Florence, Arizona.
Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Lance Douglas Linton Sr. was convicted of first-degree murder for killing his ex-wife. After his conviction was affirmed on appeal, he filed an application for post-conviction relief alleging, among other claims, that his trial counsel coerced him into waiving his right to testify at trial. This court affirmed the dismissal of the other claims in his application but remanded for an evidentiary hearing on the coercion claim. After an evidentiary hearing, the trial court found that Linton had freely and voluntarily made the decision not to testify and that Linton had not been coerced in reaching this decision. The court therefore denied Linton's application for post-conviction relief. Linton appeals the trial court's decision. We affirm.
The factual background of this case is set out in this court's decision in Linton v. State. Linton was convicted of murder in the first degree for killing his ex-wife. This court affirmed Linton's conviction on appeal. In 1997, Linton filed an application for post-conviction relief, raising several claims that his attorneys had been ineffective in representing him. Among other claims, Linton claimed that his trial attorney, Nelson Traverso, took actions that coerced Linton into giving up his right to testify. This court affirmed the superior court's dismissal of Linton's application for post-conviction relief on all issues except for Linton's claim that he had been coerced by Traverso to give up his right to testify at trial. We remanded the case to the superior court to determine the merits of Linton's claim.
880 P.2d 123, 125-26 (Alaska App. 1994), aff'd on reh'g, 901 P.2d 439 (Alaska App. 1995).
Id.
Superior Court Judge Niesje J. Steinkruger conducted an evidentiary hearing. Linton testified at the evidentiary hearing. Basically, Linton claimed that the lack of diligence by both Traverso and his pre-trial attorney contributed to the coercion that prevented Linton from testifying. Linton claimed that he had always insisted that he wanted to testify, but Traverso pressured him into not testifying. Linton stated that Traverso told him that he would not ask Linton any questions or give him any support if Linton insisted on testifying. He also claimed that Traverso had informed him of various embarrassing allegations that would be brought to light by the State during its cross-examination of Linton. Linton acknowledged that he understood that he could have insisted on testifying and that he had stated in open court that he did not want to testify. But Linton insisted that the lack of diligence by his attorneys, Traverso's refusal to assist him in testifying, and Traverso's threats about the State's allegations coerced him into waiving his right to testify.
Traverso also testified at the evidentiary hearing. He acknowledged that Linton told him early in his representation that he wanted to testify. But Traverso denied that he ever told Linton that he would not give him any support or that he refused to question Linton if he testified. Traverso stated that he would never demand that a client not testify. He stated that if Linton had decided to testify, he would have honored that decision. He stated that he was ethically bound to do so. Traverso testified that he discouraged Linton from testifying because he thought that Linton's testimony would harm his case and gave specific reasons why he discouraged Linton from testifying. Traverso stated that he never told Linton that he could not testify, and he believed that Linton eventually concluded that testifying was not in his own best interest.
Thomas Bole, who worked as a defense investigator for Traverso, also testified. Bole testified that he recalled a few conversations between Linton and Traverso where they discussed whether Linton should testify. He stated that he never heard Traverso threaten Linton. Bole did say that Traverso discouraged Linton from testifying because Traverso concluded that Linton's testimony would hurt his case. Bole stated that he never heard Traverso say anything to Linton that was coercive.
At the conclusion of the evidentiary hearing, Judge Steinkruger found that Linton's testimony was not credible. She accepted Traverso's testimony, as supported by Bole, and rejected Linton's claims. She found that Linton "is a strong and articulate personality . . . [and] that if Mr. Linton decided it would be helpful in his case to testify, he would have conveyed that to the court and to his counsel." She concluded that Linton made the final decision not to testify and that Linton had not been coerced. She therefore denied Linton's application for post-conviction relief.
On appeal, Linton argues that Judge Steinkruger erred in finding that he had not been coerced to give up his right to testify. But Judge Steinkruger conducted the evidentiary hearing. It was her job to determine the credibility of the witnesses who appeared before her. We are to overturn the superior court's factual findings only if they are clearly erroneous — that is, only if our review of the record leaves us with a definite and firm conviction that the trial court erred. We have reviewed the record and Judge Steinkruger's findings. We conclude that Judge Steinkruger's findings are supported by the record and those findings are not clearly erroneous. We accordingly affirm Judge Steinkruger's decision denying Linton's application for post-conviction relief.
See Lott v. State, 836 P.2d 371, 377 n. 5 (Alaska App. 1992).
See State v. Abbott, 498 P.2d 712, 727 (Alaska 1972); Bobby v. State, 950 P.2d 135, 138 (Alaska App. 1997).
On appeal, Linton attempts to add new issues to his application for post-conviction relief. This is improper. Only one issue remained from Linton's application for post-conviction relief. That was Linton's claim that his counsel had coerced him into giving up his right to testify at his trial. We remanded Linton's case to the superior court, directing that court to address that claim. The superior court has now ruled on that issue. This is the only issue that Linton is entitled to appeal. We accordingly do not address the other issues that Linton has attempted to raise.
Linton v. State, Alaska App. Memorandum Opinion and Judgment No. 4841 at 5-7 (March 24, 2004), 2004 WL 595606 at *2-3.
The judgment of the superior court is AFFIRMED.